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Judgment
Arindam Sinha, J
Mr. Nanda, learned advocate appears on behalf of appellant, who is the wife having custody of the daughter. He submits, the daughter is 12 years old. The Court below has granted custody to opposite party-father. This was by impugned judgment dated 22nd April, 2021. The judgment was exparte. He submits, there be direction for remand of the case, to give opportunity to his client to present her contentions for continuing to be in custody of the child.
Mr. Mishra, learned advocate appears on behalf of respondent-husband and submits, in spite of the judgment his client has not got custody of the daughter. However, in fairness he submits, in event a time bound direction is given for expeditious hearing of the guardian misc. case, his client will not stand in the way.
On perusal of impugned judgment, Court is not convinced that
there is a case for remand on setting it aside, even under rule 23-A in
order XLI of Code of Civil Procedure. However, the Code provides power to appellate Court to make any order as the case may require. As such, in view of appellant's assurance that she will present her contentions before the Court on remand and respondent-husband's fairness in consenting to it for purpose of obtaining contested adjudication, this Court restores the application for appellant to be heard on following conditions:-
i) Appellant will produce this order before the Court below within two weeks from date, upon notice to respondent-husband.
ii) The Court below, thereon will fix a date for hearing of the guardian misc. case.
iii) It appears from impugned judgment that argument of appellant was heard on 12th April, 2021 and judgment delivered on 22nd April, 2021. The Court below will proceed in similar manner to dispose of the guardian misc. case on remand. It is made clear that in event appellant prays for adjournment or stays away from hearing, the Court below will forthwith pronounce judgment.
On above conditions for rehearing, impugned judgment is set aside. It is made clear that such has been done not on merits but for the purpose stated above. It is further made clear that if appellant does not comply with condition (i) above, this order of setting aside impugned judgment will automatically stand recalled.
The appeal stands disposed of.
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